Heller v. District of Columbia: Why the 2nd Amendment Matters

Why should every American care about the 2nd Amendment? Posted here in full, a message — on Heller v. District of Columbia — by David Harmer:

One week ago today, the U.S. Supreme Court heard oral arguments in Heller v. District of Columbia, the case challenging the District of Columbia’s ban on guns as a violation of the Second Amendment.

Ten years ago, in my last law review article (“Securing a Free State: Why the Second Amendment Matters,” 1998 Brigham Young University Law Review 55-101), I argued that the Second Amendment secures an individual right, not a collective or quasi-collective right. My article was cited approvingly in United States v. Emerson, 46 F. Supp. 2d 598, 601, 607 (N.D. Tex. 1999), a case that many Second Amendment proponents hoped would become the vehicle through which the Supreme Court would explicitly recognize the individual right to keep and bear arms. Although Emerson was reversed, 270 F.3d 203 (5th Circ. 2001); cert. denied, 536 U.S. 907 (2002), the Fifth Circuit upheld Emerson’s core conclusion that the Second Amendment secures an individual right. 270 F.3d 218-229. I’d like to hope that my admittedly minor contribution to the development of Second Amendment jurisprudence helped prepare for last week’s events.

The oral arguments in Heller gave me the occasion to re-read my article. It begins with a survey of judicial and scholarly opinion relating to the Amendment, then proceeds to examine the continuing relevance of the right the Amendment recognizes. Here’s an excerpt (with citations omitted for readability):

I heard these grievances time and again on the campaign trail. In the course of my congressional race, I met representatives of the business community, pro-family groups, and other interests; and along with them, I met many volunteers, contributors, and delegates whose primary motivation for political activity was their concern for the Second Amendment. They feared that bans on certain types of rifles and ammunition, the imposition of waiting periods prior to firearms purchases, and efforts to require firearms registration were a prelude to efforts to confiscate their guns – and, perhaps, along with their guns, other rights as well. An experience related in Forbes magazine indicates that their fears are not entirely irrational. The author recounts:

When I was growing up, I thought that nothing better demonstrated my father’s nutty side than his opinion on gun control. “Any form of licensing is just an underhanded attempt to ban guns,” my old man, an avid sportsman and expert marksman, would expound. I would roll my eyes. Here we go again.

Dad was right.

Last year he wanted to give me a shotgun. A premium-grade, 12-bore side-by-side, handmade in Germany in the 1920s, it has beautiful engraving on its side locks, and weighs just over 5 pounds. It would be prefect in a Ralph Lauren ad. But before Dad could send the gun from Seattle, where he lives, I had to obtain a New York City gun permit.

The ordeal began.

For all of New York City there is only one place to get an application for a long-barreled gun permit – a dingy, understaffed office in the basement of the Criminal Court Building in deepest Queens. (For handguns, there’s a different place.)

After standing in line for a half-hour I was given a fistful of papers to fill out – criminal record, history of mental instability, that kind of thing. A polite clerk, Ms. Metts, wanted three full sets of fingerprints. That took another half-hour. I had to produce a recent utilities bill and my passport, and four mug shots.

Then I started doling out money: $74 for the New York State Division of Criminal Services for checking out my fingerprints; $55 to the New York City Police Department for their time. Luckily I had been forewarned: No cash, no credit cards, no checks. Bring money orders. And make sure that you have two, one for the city and one for the state.

All this took place last Nov. 15. Today is Mar. 18. Four months, and I’m still waiting for my permit.

So, Dad, you were right: From licensing guns to outright banning is only a short step. When I commented to Ms. Metts that there seemed to be an awful lot of red tape involved in the process, she cheerfully replied: “You should try getting a handgun permit. No, don’t bother. You’ll never get it. Frankly, we don’t really want people to have guns.” An honest woman.

Suppose that New York City required anyone who wished to publish a letter to the editor or speak on a radio talk show to first obtain a permit. Suppose further that the permit could be obtained only after undergoing an ordeal like that of the would-be recipient of his father’s rifle. Immediately and fiercely, the attempt would be denounced from around the nation as a clear violation of the First Amendment, and the law would be judicially enjoined before it even came close to getting onto the books. But let the ordeal instead apply to those wishing to exercise Second Amendment rights, and no outcry ensues. The news media and judiciary, so jealous of First Amendment rights, are conspicuously absent when the Second Amendment is under the gun. Second Amendment advocates are correct in believing that the right that matters so much to them does not matter at all to those who report the news, to many state and local governments, or to any branch of the federal government.

The Second Amendment proponents I met in the course of my congressional campaign were not the wild-eyed radicals or paranoid conspiracy theorists of common caricature, but responsible citizens, generally with wholesome families, usually with respectable jobs, and always with the willingness to participate in the often tedious and frustrating political process. They were good people who considered their firearms badges of their waning freedom and independence, and who genuinely felt that the federal government was already infringing their right to keep and bear arms in violation of the Second Amendment. In their concerns, they were joined by many who did not own guns. As a candidate, I conducted in-district fundraisers or delegate meetings six nights a week. In nearly every meeting – along with the questions about taxes, federal spending, the predictable hot-button issues, and particular local concerns – someone would mention what happened at Ruby Ridge or Waco, usually recounting another incident of federal overreaching less lethal but closer to home. These individuals would then express genuine concern about our ability to retain a government of limited, enumerated powers which respected inalienable rights and remained subject to the consent of the governed.

In considering their views, and their deep alienation from the federal government, I reflected on the letter Sullivan Ballou (picture right), a major in the second Rhode Island volunteers, wrote to his wife Sarah at home in Smithfield, a week before he was killed at the Battle of Bull Run. Major Ballou wrote:

July 14, 1861

Washington, D.C.

Dear Sarah,

The indications are very strong that we shall move in a few days, perhaps tomorrow, and lest I should not be able to write you again, I feel impelled to write a few lines that may fall unto your eye when I am no more.

I have no misgivings about, or lack of confidence in, the cause in which I am engaged, and my courage does not halt or falter. I know how American civilization now leans upon the triumph of the government, and how great a debt we owe to those who went before us through the blood and suffering of the Revolution; and I am willing, perfectly willing, to lay down all my joys in this life to help maintain this government, and to pay that debt.

Sarah, my love for you is deathless. It seems to bind me with mighty cables that nothing but Omnipotence can break. And yet my love of country comes over me like a strong wind, and bears me irresistibly with all those chains to the battlefield.

“I am willing,” wrote Sullivan Ballou, “perfectly willing, to lay down all my joys in this life to help maintain this government.” Does anyone in America feel that way about the federal government now?

Perhaps the replacement of popular affinity for with resentment and apprehension of our government has occurred largely because Sullivan Ballou and his contemporaries saw their government as protecting their most fundamental rights, while the concerned citizens I met in my campaign see their government as threatening theirs. With gun owners this is particularly the case, and their fears cannot be dismissed as unreasonable.